In 2008, under bipartisan pressure from Congress to ensure that all Americans would be able to access the results of taxpayer-funded biomedical research, the US National Institutes of Health instituted a Public Access Policy:

The NIH Public Access Policy ensures that the public has access to the published results of NIH funded research. It requires scientists to submit final peer-reviewed journal manuscripts that arise from NIH funds to the digital archive PubMed Centralupon acceptance for publication. To help advance science and improve human health, the Policy requires that these papers are accessible to the public on PubMed Central no later than 12 months after publication.

The policy has provided access for physicians and their patients, teachers and their students, policymakers and the public to hundreds of thousands of taxpayer-funded studies that would otherwise have been locked behind expensive publisher paywalls, accessible only to a small fraction of researchers at elite and wealthy universities.

The policy has been popular – especially among disease and patient advocacy groups fighting to empower the people they represent to make wise healthcare decision, and teachers educating the next generation of researchers and caregivers.

But the policy has been quite unpopular with a powerful publishing cartels that are hellbent on denying US taxpayers access to and benefits from research they paid to produce. This industry already makes generous profits charging universities and hospitals for access to the biomedical research journals they publish. But unsatisfied with feeding at the public trough only once (the vast majority of the estimated $10 billion dollar revenue of biomedical publishers already comes from public funds), they are seeking to squeeze cancer patients and high school students for an additional $25 every time they want to read about the latest work of America’s scientists.

Unable to convince the NIH to support their schemes, the powerful publishing lobby group – the Association of American Publishers – has sought Congressional relief. In 2009, the AAP induced Michigan Rep John Conyers to introduce the “Fair Copyright in Research Works Act” which would have ended the NIH Public Access Policy before it even got off the ground. Fortunately, that bill never left committee.

But they are back at it. A new AAP backed bill – the “Research Works Act” – was just introduced by Reps Carolyn Maloney (D-NY) and Darrell Issa (R-CA). Its text is simple and odious:

No Federal agency may adopt, implement, maintain, continue, or otherwise engage in any policy, program, or other activity that:

(1) causes, permits, or authorizes network dissemination of any private-sector research work without the prior consent of the publisher of such work; or

(2) requires that any actual or prospective author, or the employer of such an actual or prospective author, assent to network dissemination of a private-sector research work.

This bill would not only end the NIH’s Public Access Policy, but it would forbid any effort on the part of any agency to ensure taxpayer access to work funded by the federal government.

Why, you might ask, would Carolyn Maloney, representing a liberal Democratic district in New York City that is home to many research institutions, sponsor such a reactionary piece of legislation that benefits a group of wealthy publishers at the expense of the American public? Hmm. Wouldn’t happen to have anything to do with the fact that she’s the biggest recipient of campaign contributions from the publishing industry, would it?

According to MapLight, which tracks political contributions, Dutch publisher Elsevier and its senior executives made 31 contributions to members of the House in 2011, of which 12 went to Representative Maloney. This includes contributions from 11 senior executives or partners, only one of whom is a resident of her district.

It is inexcusable that a simple idea – that no American should be denied access to biomedical research their tax dollars paid to produce – could be scuttled by a greedy publisher who bought access to a member of Congress.

So I urge you to call/write/email/tweet Representative Maloney today, and tell her you support taxpayer access to biomedical research results. Ask her why she wants cancer patients to pay Elsevier $25 to access articles they’ve already paid for. And demand that she withdraw H.R. 3699.

Several people have commented that the language of the bill I quoted refers to “private sector work”, thinking that this means it does not refer to work funded by the US Government. This term is defined in the bill as:

The term `private-sector research work’ means an article intended to be published in a scholarly or scientific publication, or any version of such an article, that is not a work of the United States Government (as defined in section 101 of title 17, United States Code), describing or interpreting research funded in whole or in part by a Federal agency and to which a commercial or nonprofit publisher has made or has entered into an arrangement to make a value-added contribution, including peer review or editing. Such term does not include progress reports or raw data outputs routinely required to be created for and submitted directly to a funding agency in the course of research.

They are using intentionally misleading language to distinguish works funded by the government but carried out by a non-governmental agency as “private sector research”. Thus, under this bill, works funded by the NIH but carried at a University would be “private sector research”.

This language is in there because the US Copyright Act specifically denies copyright protection to works carried out by federal agencies, and the authors of this bill did not want it to be seen as amending Copyright Act, something that would have ensured its defeat.

2 Comments

@Tom Reller I am a little confused when publishers say that its costs serious amounts of money to get peer reviews and editorial work, etc. From my understanding, most reviewers do their work on a volunteer basis and don’t get paid for it (at least I haven’t been paid for the many reviews I have completed for journal papers and to the best of my knowledge, no one else I know in the academic community has been paid either). Most editors, asst. editors, etc. are also academicians/researchers who volunteer their time and effort. Universities pay the salaries of these people (mostly from federally funded grants). Hence, federal research money is being used in two ways by the publishers — to fund the actual research and also to pay the salaries of the volunteer reviewers/editors. Without these contributions, the publishers wouldn’t have a real business! In the case of reviewers and editors that don’t work in academia, their money/time is sponsored by their employers and not companies like Elsevier.

The main costs (in my understanding) comes from the secretarial staff and time/money to manage the servers, etc. These days with electronic typesetting, most papers are set by the authors themselves and there is little work for publishers to do. Likewise for electronic distribution.

But locking down access to material that has been funded, twice, by federal grants is not kosher, imho. Let Elsevier pay *real* salaries to the reviewers and editors *and* fund the research. Then they can claim to have a better argument for locking down the results using these types of bills.

The revolution is already underway (cf. Gowers’ blog). The Internet – as the vehicle of the collective intelligence of the Actual Content Creators – means that the likes of Elsevier can be relegated to the garbage can of history.

[…] This isn’t the first time major publishing interests have tried to block open access to taxpayer-funded research. In two successive sessions (2008 and 2009), Rep. John Conyers (D-MI) introduced the Fair Copyright in Research Works Act, reportedly at the behest of the Association of American Publishers. […]

[…] / Tweetosphere activity about this bill. Jason Baird Jackson provides some great links, including a post by UC Berkeley’s Michael Eisen noting how one of the bill’s sponsors Rep. Maloney gets lots of donations from Elsevier (no […]

[…] to be, the most vocal opponent of public access policies. They have been trying for years to roll back the NIH’s Public Access Policy and to defeat any and all efforts to launch new public access policies at the federal and state […]

[…] to be, the most vocal opponent of public access policies. They have been trying for years to roll back the NIH’s Public Access Policy and to defeat any and all efforts to launch new public access policies at the federal and state […]

[…] off [31] after mathematicians boycotted the company [32] and Eisen publicized a bunch of interestingly timed donations [33] from company execs to Maloney. “The Elsevier people were referring to the bill […]

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Michael Eisen

I'm a biologist at UC Berkeley and an Investigator of the Howard Hughes Medical Institute. I work primarily on flies, and my research encompases evolution, development, genetics, genomics, chemical ecology and behavior. I am a strong proponent of open science, and a co-founder of the Public Library of Science. And most importantly, I am a Red Sox fan. (More about me here).